Paper It or Pay for It – Why a Cohabitation Agreement May Be More Important Than You Think

Paper It or Pay for It – Why a Cohabitation Agreement May Be More Important Than You Think

Feb 25, 2018

Have you and your significant other recently discussed taking your relationship to the next step? Does this involve spending more time in the same residence or, perhaps, leasing or buying a place together? If so, you should know that it has never been more important to consider whether a cohabitation agreement may be necessary to protect your income and assets.

The very recent case of Wright v Lemoine, 2017 ABQB 395 shows precisely how short-term relationships can result in lasting, and unexpected, legal obligations. In Wright v. Lemoine a couple enjoyed a relationship with one another that very few would consider, at first glance, to fall within the category of relationships giving rise to a duty to provide support on separation.

Briefly, following a two-day trial Justice K.D. Nixon ordered Mr. Lemoine to pay support to Ms. Wright in the amount of $1,800 per month for two years even though they had only cohabited for a mere 3.5 years and had never lived together in the same fixed residence. Rather, during the period of cohabitation Mr. Lemoine only received a single week off from work per month. During that week the couple would spend their time together in various accommodations such as motels and a trailer. When they were not together, Mr. Lemoine lived on-site at his place of employment where he worked as a pipeline foreman, staying in either the trailer or other temporary accommodation, while Ms. Wright stayed at her mother’s residence.

In Alberta, unmarried persons in a conjugal relationship may have a duty to support the other partner upon separation if they are found to be adult interdependent partners (AIPs). The term AIP is a legislative one that has largely replaced the concept of the “common law spouse” in Alberta. Unmarried couples without children may qualify as AIPs provided they live together continuously for three years or more in a relationship of interdependence. Whether there is a “relationship of interdependence” is a very fact-specific inquiry, and may require proof that the couple cared for and supported one another and combined their financial affairs. In other words, that the relationship was more akin to the concept of a traditional marriage than a typical dating relationship.

At trial, Mr. Lemoine largely relied on the argument that he and Ms. Lemoine could not be AIPs because they had never lived together under the same, single roof. Ms. Wright argued that she and Mr. Lemoine spent as much time together as they could when Mr. Lemoine had time off from work and had gone so far as to look at buying a house together early into the relationship. In addition to that, Ms. Wright stated that her relationship with Mr. Lemoine bore many of the signs of an AIP relationship, as she had expended considerable time and energy into providing domestic services to Mr. Lemoine while he worked and had assisted him with setting up his corporation. This was to the detriment of Ms. Wright’s career in Ontario, which she had left to pursue a relationship with Mr. Lemoine.

Justice Nixon agreed with Ms. Wright that the fact that she and Mr. Lemoine only stayed together intermittently in impermanent accommodations did not mean they hadn’t lived together continuously for their relationship. Most importantly, Justice Nixon accepted Ms. Wright’s argument that the fact that she and Mr. Lemoine had looked at a house together early into their relationship meant that they were seriously considering living together, and had formed an intention to do so. This intention did not change over the course of the relationship. Justice Nixon concluded that it was important to give weight to a couple’s intentions when determining whether they are living together or not. On this basis, she found that Mr. Lemoine and Ms. Wright had lived together for 3 ½ years of their 4-year relationship, which had been one of interdependence, and were therefore AIPs. That, combined with Ms. Wright’s financial need and the fact that she had left her employment to be with Mr. Lemoine, entitled her to support.

Wright v Lemoine is an example of how unusual facts can lead to unpredictable results, some of which may not be fully appreciated until after an expensive trial. A properly drafted cohabitation agreement can protect you from this uncertainty by clearly identifying your rights and responsibilities should you and your partner separate. If you are interested in learning more, please contact one of the lawyers at Mincher Koeman LLP.

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